UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
(AMENDMENT
NO. 11)
RULE 13e-3 TRANSACTION STATEMENT
UNDER SECTION 13(E)
OF THE SECURITIES EXCHANGE ACT OF 1934
Exceed Company Ltd.
(Name of the Issuer)
Exceed Company Ltd.
Shuipan Lin
Chen Shuli
Ding Dongdong
Tiancheng Int'l Investment Group Limited
Victory Summit Investments Limited
Windtech Holdings Limited
Wisetech Holdings Limited
RichWise International Investment Group
Limited
Eagle Rise Investments Limited
HK Haima Group Limited
Weixin Zhuang
Pan Long Company Limited
Pan Long Investment Holdings Limited
(Names of Persons Filing
Statement)
Ordinary Shares, $0.0001 par value
(Title of Class of Securities)
G32335
(CUSIP Number)
|
Exceed Company Ltd.
Level 12, China Minmetals Tower
179 Chatham Road South, Tsim Sha Tsui
Kowloon, Hong Kong
+852 3975 8116 |
|
Shuipan Lin
Tiancheng Int'l Investment Group Limited
Ding Dongdong
Pan Long Company Limited
Pan Long Investment Holdings Limited
Chen Shuli
c/o Exceed Company Ltd.
Level 12, China Minmetals Tower
179 Chatham Road South,Tsim Sha Tsui
Kowloon, Hong Kong
T: + 852 3975 8116
Victory Summit Investments Limited
Windtech Holdings Limited
Wisetech Holdings Limited
PO Box 314, 3rd Floor, 18 Fort Street
George Town, Grand Cayman KY1-1104, Cayman
Islands
+852 2801 6988 |
| |
|
RichWise International Investment Group
Limited
Room 4101, Landmark
4028 Jintian Road, Futian District
Shenzhen, P.R. China
+86 755 8283- 998
Eagle Rise Investments Limited
Room 2303, No. 12 Building
6 Dingtaifenghua, Qianhai Road, Nanshan
District Shenzhen,
P.R. China
86-755-8283-9916
HK Haima Group Limited
Weixin Zhuang
Room 18 Unit A 14/F, Shun On Commercial
Building
112-114 Des Voeux Road Central
Hong Kong
86-135-0501-5999 |
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
With copies to:
|
Virginia Tam
K&L Gates LLP
44th Floor, Edinburgh Tower
The Landmark, 15 Queen's Road Central
Hong Kong |
|
Peter X. Huang
Skadden, Arps, Slate, Meagher &
Flom LLP
30th Floor, China World Office 2
1 Jianguomenwai Avenue
Beijing 100004, PRC |
This statement is filed in connection with (check the appropriate
box):
¨
The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14-C or Rule 13e-3(c)
under the Securities Exchange Act of 1934.
¨
The filing of a registration statement under the Securities Act of 1933.
¨
A tender offer
x None
of the above
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: ¨
Check the following box if the filing is a final amendment reporting
the results of the transaction: ¨
Calculation of Filing Fee
| Transactional Valuation* |
|
|
Amount of Filing Fee** |
|
| |
|
|
|
|
|
|
| $ |
19,545,858 |
|
|
$ |
2,517.51 |
|
*Calculated solely for the purpose of determining the filing
fee in accordance with Rule 0-11(b)(1) under the Securities Exchange Act of 1934, as amended. The filing fee is calculated
based on the sum of the aggregate cash payment for the proposed per share cash payment of $1.78 for 10,980,819 outstanding
Shares of the issuer subject to the transaction (the "Transaction Valuation").
**The amount of the filing fee, calculated in accordance with
Exchange Act Rule 0-11(b)(1) and the Securities and Exchange Commission Fee Rate Advisory #1 for Fiscal Year 2014,
was calculated by multiplying the Transaction Valuation by 0.00012880.
x Check box if any
part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting of the fee
was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $2,517.51
TABLE OF CONTENTS
INTRODUCTION
This Amendment No. 11 (this “Amendment”)
to the Rule 13E-3 transaction statement on Schedule 13E-3, together with the exhibits hereto (this "Transaction
Statement"), is being filed with the Securities and Exchange Commission (the "SEC") pursuant to Section 13(e)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), jointly by the following persons (each,
a "Filing Person," and collectively, the "Filing Persons"): (a) Exceed Company Ltd., a business company with
limited liability incorporated under the laws of the British Virgin Islands, the issuer of the registered ordinary shares, $0.0001
par value (each, a "Share" and collectively, the "Shares") that is subject to the transaction pursuant to
Rule 13e-3 under the Exchange Act; (b) Pan Long Company Limited, an exempted company with limited liability incorporated
under the laws of the Cayman Islands (“Parent”); (c) Pan Long Investment Holdings Limited, a business company with
limited liability incorporated under the laws of the British Virgin Islands, all of the issued and outstanding shares of which
are owned by Parent (“Merger Sub”); (d) Shuipan Lin (“Mr. Lin”), the Company's Chairman and Chief Executive
Officer; (e) Tiancheng Int'l Investment Group Limited, which is beneficially owned by Chen Shuli, Mr. Lin’s mother (“Tiancheng”);
(f) Ding Dongdong, a director and Executive Senior Vice President of the Company (“Mr. Ding”); (g) Chen Shuli, shareholder
of Tiancheng and mother of Mr. Lin; (h) Windtech Investments Limited, a shareholder of the issuer; (i) Wisetech Investments Limited,
a shareholder of the issuer; (j) Victory Summit Investments Limited, the company that ultimately controls Windtech Investments
Limited and Wisetech Investments Limited; (k) RichWise International Investments Group Limited, a shareholder of the issuer; (l)
Eagle Rise Investments Limited, a shareholder of the issuer; (m) HK Haima Group Limited, a shareholder of the issuer and (n) Weixin
Zhuang, sole shareholder and director of HK Haima Group Limited (the Filing Persons, with the exception of the Company, are collectively
referred to as the “Buyer Group”). This Amendment amends and restates in its entirety information set forth in the
Transaction Statement.
On December 2, 2013, Parent, Merger Sub
and the Company entered into an agreement and plan of merger (the "merger agreement"), which included a plan of
merger required to be filed with the Registrar of Corporate Affairs of the British Virgin Islands, substantially in the form attached
as Appendix 1 to the merger agreement (the "plan of merger"). If the merger agreement is approved and
authorized by the Company's shareholders and the other conditions to the closing of the merger (as described below) are met,
Merger Sub will merge with and into the Company (the "merger"), with the Company continuing as the surviving corporation
after the merger. Parent and Merger Sub are currently wholly beneficially owned by Mr. Lin.
Subject to the terms and conditions of the
merger agreement, at the effective time of the merger, each outstanding Share will be cancelled in exchange for the right to receive
$1.78 per Share in cash, without interest and net of any applicable withholding taxes, except for the following excluded Shares
(the "Excluded Shares"): (i) Shares beneficially owned by Mr. Lin, Tiancheng, HK Haima Group Limited, Wisetech
Holdings Limited, Windtech Holdings Limited, Richwise International Investment Group Limited, Mr. Ding and Eagle Rise Investment
Limited (collectively referred to as the “Rollover Shareholders”) and (ii) Shares (the "Dissenting Shares")
owned by holders of Shares who have validly exercised and not effectively withdrawn or lost their dissenters’ rights pursuant
to Section 179 of the BVI Business Companies Act, 2004, as amended (the "BVI Companies Act") (the "Dissenting
Shareholders"). Each Excluded Share (other than Dissenting Shares) issued and outstanding immediately prior to the effective
time of the merger, will be cancelled and will cease to exist, and no consideration will be delivered with respect thereto. Each
Dissenting Shareholder will be entitled to receive only the payment resulting from the procedure in Section 179 of the BVI
Companies Act with respect to Shares owned by such Dissenting Shareholder.
The merger remains subject to the satisfaction
or waiver of the conditions set forth in the merger agreement, including the authorization and approval by an affirmative vote
of shareholders representing at least 70% of the Shares outstanding for voting purposes.
The Company has made available to its shareholders
a proxy statement (the "proxy statement," a copy of which is attached as Exhibit (a)-(1) to the transaction
statement that was filed with the Securities and Exchange Commission on March 21, 2014), relating to the extraordinary general
meeting of shareholders of the Company, at which the shareholders of the Company will consider and vote upon, among other proposals,
a proposal to authorize and approve the merger agreement, the plan of merger and the transactions contemplated by the merger agreement,
including the merger. A copy of the merger agreement, together with the plan of merger substantially in the form attached as Appendix 1
to the merger agreement, is attached to the proxy statement as Annex A and is incorporated herein by reference.
On April 16, 2014, the Company adjourned
its extraordinary general meeting of shareholders that was called to authorize and approve the proposed merger. The board of directors
of the Company had determined that it is in the best interests of its shareholders to adjourn the extraordinary general meeting
because Mr. Lin has advised the Company that he requires additional time to obtain his contemplated financing for the proposed
merger. Mr. Lin had advised the Company that at the time, he expected this would not be later than May 31, 2014. Apart from the
motion to adjourn, no other business was conducted at the extraordinary general meeting of shareholders on April 16, 2014. The
resolutions set out in the notice of the extraordinary general meeting dated March 21, 2014 will be considered and voted on at
such time as the adjourned extraordinary general meeting is resumed.
On April 30, 2014, the Company filed with
the SEC an Annual Report on Form 20-F for the year ended December 31, 2013. The audited financial statements of the Company for
the year ended December 31, 2013 are incorporated herein by reference to such Form 20-F (see Item 13 below).
On or about May 8, 2014, the Company mailed
to shareholders a transmittal letter dated May 8, 2014 (a copy of which is filed herewith as Exhibit (a)(9)) attaching (a) copies
of the press releases issued by the Company on April 14, 2014 and April 16, 2014, respectively, regarding the adjournment of the
extraordinary general meeting and (b) a copy of the Company’s Annual Report on Form 20-F for the year ended December 31,
2013.
On June 3, 2014, the Company issued a press
release (filed as Exhibit (a)(10)) announcing that it had received the following updated information from Mr. Lin regarding the
availability of the financing contemplated to be received by Mr. Lin in order to fund the merger consideration:
| |
· |
Mr. Lin anticipated that additional time was needed to obtain the financing, which was reduced by $5 million as a result of the Equity Financing referenced below. He anticipated that the merger consideration would be available by June 20, 2014. In addition, the Loan Notes with each of Ms. Weixin Zhuang and Mr. Guomin Chen were replaced with new Loan Notes reflecting (a) the decrease in the aggregate principal amount of loans to $15 million (the “Debt Financing”) and (b) and an obligation by the lenders to fund such Debt Financing to a bank outside of the People’s Republic of China by June 20, 2014. Copies of the new Loan Notes are filed as Exhibits (b)(6) and (b)(7), respectively. As further described below, a portion of the Debt Financing in the amount of $5 million has since been repaid to Ms. Zhuang and Mr. Lin has entered into a new loan arrangement with a different lender. |
| |
· |
Wisetech Holdings Limited and Windtech Holdings Limited, two of the Rollover Shareholders named in the proxy statement, agreed to invest an aggregate of $5 million in cash in Parent (the “Equity Financing”), which funds will be used to finance a portion of the merger consideration (the Subscription Agreement for the Equity Financing is filed as Exhibit (b)(5)). Mr. Lin has advised the Company that the full amount of Equity Financing is on deposit in accounts outside of the People’s Republic of China and will be available at the closing of the proposed transaction. While Mr. Lin and the Rollover Shareholders will still own 100% of the Company’s outstanding shares (indirectly through Parent) immediately after the merger, because of the Equity Financing, their respectively ownership interests in the Company will be amended as follows: |
| | |
Share ownership prior to the
merger | | |
Share ownership after the merger | |
| Shareholders | |
Shares in the Company | | |
% | | |
Shares in Parent | | |
% | |
| Shuipan Lin | |
| 12,822,986 | | |
| 38.0 | % | |
| 21,249,952 | | |
| 63.7 | % |
| Tiancheng Int'l Investment Group Limited | |
| 2,037,053 | | |
| 6.0 | % | |
| 2,037,053 | | |
| 6.1 | % |
| HK Haima Group Limited | |
| 1,018,527 | | |
| 3.0 | % | |
| 1,018,527 | | |
| 3.1 | % |
| Wisetech Holdings Limited | |
| 1,583,114 | | |
| 4.7 | % | |
| 2,706,710 | | |
| 8.1 | % |
| Windtech Holdings Limited | |
| 2,374,670 | | |
| 7.0 | % | |
| 4,060,063 | | |
| 12.2 | % |
| RichWise International Investment Group Limited | |
| 1,907,180 | | |
| 5.7 | % | |
| 1,907,180 | | |
| 5.7 | % |
| Dongdong Ding | |
| 100,000 | | |
| 0.3 | % | |
| 100,000 | | |
| 0.3 | % |
| Eagle Rise International Limited | |
| 300,000 | | |
| 0.9 | % | |
| 300,000 | | |
| 0.9 | % |
| Subtotal | |
| 22,143,530 | | |
| 65.6 | % | |
| 33,379,485 | | |
| 100.0 | % |
| Total Shares issued/to be issued | |
| 33,736,313 | | |
| 100.0 | % | |
| 33,379,485 | | |
| 100.0 | % |
On or about June 10, 2014, the Company mailed
to shareholders a transmittal letter dated June 6, 2014 (a copy of which is filed as Exhibit (a)(11)) attaching a copy of the press
release issued by the Company on June 3, 2014.
On June 26, 2014 the Company issued a press
release (filed as Exhibit (a)(12)) announcing that Mr. Lin had provided the Company with the following updates: (a) US$5 million
would be deposited in the Parent's account outside of the People's Republic of China on or about June 27, 2014 (as of the date
hereof, such amount has been deposited); (b) an additional US$5 million would be deposited in the Parent's account outside of the
People's Republic of China on or about July 2, 2014 (as of the date hereof, such amount has not yet been deposited); and (c) at
the time, Mr. Lin expected that the remaining approximately US$5 million of the contemplated financing would be available by mid-July.
The Company also announced that Mr. Lin had also agreed to deliver an irrevocable undertaking to the bank to the effect that any
cash deposits made to the Parent's account cannot be withdrawn except with the consent of the Company. The Company and Mr. Lin
are currently working with the bank on the implementation of such undertaking.
The Company also announced on June 26, 2014
that its extraordinary general meeting of shareholders that was previously adjourned would be reconvened on July 29, 2014 at 10:00
am in Hong Kong. On or about July 10, 2014, the Company mailed to shareholders a transmittal letter dated July 10, 2014 (a copy
of which is filed as Exhibit (a)(13)) attaching (a) a copy of the press release issued by the Company on June 26, 2014, (b) the
notice of the reconvened extraordinary general meeting of shareholders (a copy of which is filed as Exhibit (a)(14)), and (c) a
proxy card (in substantially the form filed as Exhibit (a)(3)).
On July 28, 2014, the Company issued a press
release (a copy of which is filed as Exhibit (a)(15)) announcing that that it intended to further adjourn the extraordinary general
meeting of shareholders that was to be reconvened on July 29, 2014 because Mr. Lin had advised the Company that he required additional
time to obtain the contemplated financing for the Merger. On July 29, 2014, the Company further adjourned the extraordinary meeting,
which was announced through a press release issued on July 29, 2014 (a copy of which is filed as Exhibit (a)(16)).
On September
23, 2014, the Company issued a press release (a copy of which is filed as Exhibit (a)(17)) announcing that Mr. Lin had been advised
by Ms. Zhuang and Mr. Chen that Ms. Zhuang and Mr. Chen would not be able to make available to Mr. Lin by depositing in an overseas
bank account designated by Mr. Lin the full amount of the loans to be extended in accordance with the terms of the Loan Notes
between Mr. Lin and each of Ms. Zhuang and Mr. Chen. In light of the foregoing, the parties terminated the Loan Notes. In connection
therewith, Mr. Lin, with the prior consent of the Special Committee, returned that portion of the loans (in an aggregate amount
of US$5 million) that had previously been deposited in Mr. Lin’s overseas bank account by Ms. Zhuang. The press release
also announced that the Special Committee was in discussions with Mr. Lin regarding an amendment to the Merger Agreement that
would extend the termination date of September 2, 2014 (the “Termination Date”).
On September 5, 2014, in order to provide
for financing to fund his equity commitment under the Equity Commitment Letter, Mr. Lin then entered into a loan agreement with
Mr. Chunti Ding (the “Ding Loan Agreement”) (a copy of which is filed as Exhibit (b)(8)). Pursuant to the Ding Loan
Agreement, Mr. Ding agreed to extend a term loan of US$15,000,000 bearing interest of 10% per annum to Mr. Lin (the “Ding
Loan”). The term of the Ding Loan was for 18 months, and Mr. Ding committed to provide the loan on or before December 20,
2014. The principal and interest of the Ding Loan was due in one lump sum in cash on the maturity date.
On September 5, 2014, Mr. Lin and Mr. Ding
terminated the Ding Loan Agreement. On the same day, Mr. Lin entered into a loan agreement with Ms. Xiuyu Chen (the “Chen
Loan Agreement”) (a copy of which is filed as Exhibit (b)(9)). Pursuant to the Chen Loan Agreement, Ms. Chen agreed to extend
a term loan of US$15,000,000 bearing interest of 9.5% per annum to Mr. Lin (the “Chen Loan”). According to the terms
of the Chen Loan Agreement, the principal and interest of the Chen Loan will be repaid in lump sum in cash within two months after
the closing of the merger contemplated by the Merger Agreement. The Chen Loan will be used by Mr. Lin to fund his equity commitment
to purchase Parent securities pursuant to the Equity Commitment Letter.
On October 21, 2014, the Company issued
a press release (a copy of which is filed as Exhibit (a)(18)) announcing that on October 20, 2014, it entered into an amendment
to the Merger Agreement (a copy of which is filed as Exhibit (d)(5)) (the “Merger Agreement Amendment”). Under the
terms of the Merger Agreement, either the Company or Parent could terminate the Merger Agreement without payment of a termination
fee if the Merger was not consummated by the Termination Date. The Merger Agreement Amendment extends the Termination Date to
December 31, 2014. The Merger Agreement Amendment also (i) increases the fee payable by Parent to the Company to US$2,500,000
if the Merger Agreement is terminated under certain circumstances where a termination fee of US$2,000,000 would previously have
been payable and (ii) no longer requires the Company to pay a termination fee to Parent if the Merger Agreement is terminated
under certain circumstances where a termination fee of US$1,000,000 would previously have been payable (although the Company would
continue to be responsible for reimbursing Parent’s expenses in connection with the transaction under certain circumstances).
In connection with the Merger Agreement Amendment, on
October 20, 2014, the Company also entered into an amendment (a copy of which is filed as Exhibit (d)(6)) (the “Limited
Guaranty Amendment”) to the Limited Guaranty by Mr. Lin in favor of the Company, dated as of December 2, 2013 (the “Limited
Guaranty”). The Limited Guaranty Amendment increases the amount guarantied by Mr. Lin under the Limited Guaranty from US$2,000,000
to US$2,500,000.
The Company’s board of directors,
acting upon the unanimous recommendation of the Special Committee, has approved the Merger Agreement Amendment and the Limited
Guaranty Amendment.
The Company also announced that the
extraordinary general meeting of the Company's shareholders to consider the approval and adoption of the Merger Agreement (as
amended) and the Merger that was originally called and scheduled for April 16, 2014 will be reconvened at a later date to be announced
in order to allow additional time for the Company to provide updated information to its shareholders.
The cross-references below are being
supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the proxy statement of the
information required to be included in response to the items of Schedule 13E-3. Pursuant to General Instruction F to
Schedule 13E-3, the information contained in the proxy statement, including all annexes thereto, is incorporated in its entirety
herein by this reference, and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information
contained in the proxy statement and the annexes thereto. Capitalized terms used but not defined in this Transaction Statement
shall have the meanings given to them in the proxy statement.
All information contained in this Transaction
Statement concerning each Filing Person has been supplied by such Filing Person. No Filing Person, including the Company, has produced
any disclosure with respect to any other Filing Person.
Item 1 Summary Term Sheet
The information set forth in the proxy statement under the following
captions is incorporated herein by reference:
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
Item 2 Subject Company Information
(a) Name and Address. The information set forth in the proxy
statement under the following caption is incorporated herein by reference:
| |
· |
"Summary Term Sheet—The Parties Involved in the Merger" |
(b) Securities. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"The Extraordinary General Meeting—Record Date; Shares Entitled to Vote" |
| |
· |
"The Extraordinary General Meeting—Record Date; Shareholders Entitled to Vote; Voting Materials" |
| |
· |
"Security Ownership of Certain Beneficial Owners and Management of the Company" |
(c) Trading Market and Price. The information set forth in the
proxy statement under the following caption is incorporated herein by reference:
| |
· |
"Market Price of the Company's Shares, Dividends and Other Matters—Market Price of the Shares" |
(d) Dividends. The information set forth in the proxy statement
under the following caption is incorporated herein by reference:
| |
· |
"Market Price of the Company's Shares, Dividends and Other Matters—Dividend Policy" |
(e) Prior Public Offering. The information set forth in the
proxy statement under the following caption is incorporated herein by reference:
| |
· |
"Transactions in the Shares—Prior Public Offerings" |
(f) Prior Stock Purchase. The information set forth in the proxy
statement under the following caption is incorporated herein by reference:
| |
· |
"Transactions in the Shares" |
| |
· |
"Special Factors—Related Party Transactions" |
Item 3 Identity and Background
of Filing Person
(a) Name and Address. Exceed Company Ltd. is the subject company.
The information set forth in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—The Parties Involved in the Merger" |
| |
· |
"Annex D—Directors and Executive Officers of Each Filing Person" |
(b) Business and Background of Entities. The information set
forth in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—The Parties in the Merger" |
| |
· |
"Annex D—Directors and Executive Officers of Each Filing Person" |
(c) Business and Background of Natural Persons. The information
set forth in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—The Parties Involved in the Merger" |
| |
· |
"Annex D—Directors and Executive Officers of Each Filing Person" |
Item 4 Terms of the Transaction
(a)-(1) Material Terms. Not applicable.
(a)-(2) Material Terms. The information set forth in the proxy
statement under the following captions is incorporated herein by reference:
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
| |
· |
"The Extraordinary General Meeting" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
(b) Different Terms. The information set forth in the proxy
statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Interests of the Company's Executive Officers and Directors in the Merger" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"The Extraordinary General Meeting—Proposals to be Considered at the Extraordinary General Meeting" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
(c) Dissenters’ Rights. The information set forth in the
proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Dissenters’ Rights of Shareholders" |
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
| |
· |
"Annex C—BVI Business Companies Act, 2004, as amended—Section 179" |
(d) Provisions for Unaffiliated Security Holders. The information
set forth in the proxy statement the following caption is incorporated herein by reference:
| |
· |
"Provisions for Unaffiliated Security Holders" |
(e) Eligibility of Listing or Trading. Not applicable.
Item 5 Past Contracts, Transactions,
Negotiations and Agreements
(a) Transactions. The information set
forth in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Related Party Transactions" |
| |
· |
"Transactions in the Shares" |
(b) Significant Corporate Events. The information set forth
in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Purpose of and Reasons for the Merger" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
(c) Negotiations or Contacts. The information set forth in the
proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Plans for the Company after the Merger" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
(d) Agreements Involving the Subject Company's Securities. The
information set forth in the proxy statement under the following captions incorporated herein by reference:
| |
· |
"Summary Term Sheet—Contribution Agreement" |
| |
· |
"Summary Term Sheet—Voting Agreement" |
| |
· |
"Summary Term Sheet—Financing of the Merger" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Plans for the Company after the Merger" |
| |
· |
"Special Factors—Financing" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"Special Factors—Voting by the Rollover Shareholders at the Extraordinary General Meeting" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Transactions in the Shares" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
Item 6 Purposes of the Transaction and Plans or Proposals
(a) Use of Securities Acquired. The information set forth in
the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
| |
· |
"Special Factors—Purpose of and Reasons for the Merger" |
| |
· |
"Special Factors—Effect of the Merger on the Company" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
(b) (1)-(8) Plans. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—The Merger" |
| |
· |
"Summary Term Sheet—Purposes and Effects of the Merger" |
| |
· |
"Summary Term Sheet—Plans for the Company after the Merger" |
| |
· |
"Summary Term Sheet—Financing of the Merger" |
| |
· |
"Summary Term Sheet—Interests of the Company’s Executive Officers and Directors in the Merger" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Purpose of and Reasons for the Merger" |
| |
· |
"Special Factors—Effect of the Merger on the Company" |
| |
· |
"Special Factors—Plans for the Company after the Merger" |
| |
· |
"Special Factors—Financing" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
Item 7 Purposes, Alternatives, Reasons and Effects
(a) Purposes. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Purposes and Effects of the Merger" |
| |
· |
"Summary Term Sheet—Plans for the Company after the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Purpose of and Reasons for the Merger" |
(b) Alternatives. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Position of the Buyer, Parent and Merger Sub as to the Fairness of the Merger" |
| |
· |
"Special Factors—Purpose of and Reasons for the Merger" |
| |
· |
"Special Factors—Effects on the Company if the Merger is not Completed" |
(c) Reasons. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Purposes and Effects of the Merger" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Position of the Buyer, Parent and Merger Sub as to the Fairness of the Merger" |
| |
· |
"Special Factors—Purpose of and Reasons for the Merger" |
| |
· |
"Special Factors—Effect of the Merger on the Company" |
(d) Effects. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Purposes and Effects of the Merger" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Effect of the Merger on the Company" |
| |
· |
"Special Factors—Plans for the Company after the Merger" |
| |
· |
"Special Factors—Effects on the Company if the Merger is not Completed" |
| |
· |
"Special Factors—Effect of the Merger on the Company's Net Book Value and Net Earnings" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"Special Factors—Material U.S. Federal Income Tax Consequences" |
| |
· |
"Special Factors—Material PRC Income Tax Consequences" |
| |
· |
"Special Factors—Material British Virgin Islands Tax Consequences" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
Item 8 Fairness of the Transaction
(a)-(b) Fairness; Factors Considered in Determining Fairness.
The information set forth in the proxy statement under the following captions incorporated herein by reference:
| |
· |
"Summary Term Sheet—Recommendation of the Independent Committee and the Board of Directors" |
| |
· |
"Summary Term Sheet—Position of the Buyer, Parent, Merger Sub as to the Fairness of the Merger" |
| |
· |
"Summary Term Sheet—Interests of the Company’s Executive Officers and Directors in the Merger" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Position of the Buyer, Parent and Merger Sub as to the Fairness of the Merger" |
| |
· |
"Special Factors—Opinion of the Independent Committee's Financial Advisor" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"Annex B—Opinion of Houlihan Lokey (China) Limited as Financial Advisor" |
(c) Approval of Security Holders. The information set forth
in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Shareholder Vote Required to Authorize and Approve the Merger Agreement and Plan of Merger" |
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
| |
· |
"The Extraordinary General Meeting—Vote Required" |
(d) Unaffiliated Representative. The information set forth in
the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent committee and Our Board of Directors" |
| |
· |
"Special Factors—Opinion of the Independent Committee's Financial Advisor" |
(e) Approval of Directors. The information set forth in the
proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Recommendations of the Independent Committee and the Board of Directors" |
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
(f) Other Offers. The information set forth in the proxy statement
under the following caption since incorporated herein by reference:
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
Item 9 Reports, Opinions, Appraisals and Negotiations
(a) Report, Opinion or Appraisal. The information set forth
in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Opinion of the Independent Committee’s Financial Advisor" |
| |
· |
"Special Factors—Background of the Merger" |
| |
· |
"Special Factors—Opinion of the Independent Committee's Financial Advisor" |
| |
· |
"Annex B—Opinion of Houlihan Lokey (China) Limited as Financial Advisor" |
(b) Preparer and Summary of the Report, Opinion or Appraisal.
The information set forth in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Opinion of the Independent Committee's Financial Advisor" |
| |
· |
"Annex B—Opinion of Houlihan Lokey (China) Limited as Financial Advisor" |
(c) Availability of Documents. The information set forth in
the proxy statement under the following caption is incorporated herein by reference:
| |
· |
"Where You Can Find More Information" |
The reports, opinions or appraisal referenced in this Item 9
will be made available for inspection and copying at the principal executive offices of the Company during its regular business
hours by any interested holder of the Shares or his, her or its representative who has been so designated in writing.
Item 10 Source and Amount of Funds or Other Consideration
(a) Source of Funds. The information set forth in the proxy
statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Financing of the Merger" |
| |
· |
"Special Factors—Financing" |
| |
· |
"The Merger Agreement and Plan of Merger" |
| |
· |
"Annex A—Agreement and Plan of Merger" |
(b) Conditions. The information set forth in the proxy statement
under the following captions is incorporated herein by reference:
| |
· |
"Special Factors—Financing" |
(c) Expenses. The information set forth in the proxy statement
under the following caption is incorporated herein by reference:
| |
· |
"Special Factors—Fees and Expenses" |
| |
· |
"The Merger Agreement and Plan of Merger—Fees and Expenses" |
(d) Borrowed Funds. The information set forth in the proxy statement
under the following caption is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Financing of the Merger" |
| |
· |
"Special Factors—Financing" |
| |
· |
"The Merger Agreement and Plan of Merger—Financing" |
Item 11 Interest in Securities of the Subject Company
(a) Securities Ownership. The information set forth in the proxy
statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Share Ownership of the Company Directors and Officers and Voting Commitments" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"Security Ownership of Certain Beneficial Owners and Management of the Company" |
(b) Securities Transaction. The information set forth in the
proxy statement under the following caption is incorporated herein by reference:
| |
· |
"Transactions in the Shares" |
Item 12 The Solicitation or Recommendation
(a) Intent to Tender or Vote in a Going-Private Transaction.
The information set forth in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Share Ownership of the Company Directors and Officers and Voting Commitments" |
| |
· |
"Questions and Answers about the Extraordinary General Meeting and the Merger" |
| |
· |
"Special Factors—Voting by the Rollover Shareholders at the Extraordinary General Meeting" |
| |
· |
"The Extraordinary General Meeting—Vote Required" |
| |
· |
"Security Ownership of Certain Beneficial Owners and Management of the Company" |
(b) Recommendations of Others. The information set forth in
the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—Recommendations of the Independent Committee and the Board of Directors" |
| |
· |
"Summary Term Sheet—Position of the Buyer, Parent, Merger Sub as to the Fairness of the Merger" |
| |
· |
"Summary Term Sheet—Share Ownership of the Company Directors and Officers and Voting Commitments" |
| |
· |
"Special Factors—Reasons for the Merger and Recommendation of the Independent Committee and Our Board of Directors" |
| |
· |
"Special Factors—Position of the Buyer, Parent and Merger Sub as to the Fairness of the Merger" |
| |
· |
"The Extraordinary General Meeting—Our Board's Recommendation" |
Item 13 Financial Statements
(a) Financial Information. The audited financial statements
of the Company for the year ended December 31, 2013 are incorporated herein by reference to the Company's Form 20-F for
the year ended December 31, 2013 filed on April 30, 2014 (see page F-1 and following pages) and the audited financial statements
of the Company for the year ended December 31, 2012 are incorporated herein by reference to the Company's Form 20-F for
the year ended December 31, 2012, as amended, originally filed on March 27, 2013 (as amended on September 12, 2013) (see page F-1
and following pages).
The information set forth in the proxy statement under the following
captions is incorporated herein by reference:
| |
· |
"Financial Information" |
| |
· |
"Where You Can Find More Information" |
(b) Pro Forma Information. Not applicable.
Item 14 Persons/Assets, Retained,
Employed, Compensated or Used
(a) Solicitation or Recommendations. The information set forth
in the proxy statement under the following caption is incorporated herein by reference:
| |
· |
"The Extraordinary General Meeting—Solicitation of Proxies" |
(b) Employees and Corporate Assets. The information set forth
in the proxy statement under the following captions is incorporated herein by reference:
| |
· |
"Summary Term Sheet—The Parties Involved in the Merger" |
| |
· |
"Special Factors—Interests of Certain Persons in the Merger" |
| |
· |
"Annex D—Directors and Executive Officers of Each Filing Person" |
Item 15 Additional Information
The information contained in the proxy statement, including
all annexes thereto, is incorporated herein by reference.
Item 16 Exhibits
*(a)-(1) Proxy Statement of the Company, dated March 21, 2014
(the "proxy statement").
*(a)-(2) Notice of Extraordinary General Meeting of Shareholders
of the Company, incorporated herein by reference to the proxy statement.
*(a)-(3) Form of Proxy Card, incorporated herein by reference
to the proxy statement.
(a)-(4) Press Release issued by the Company, dated August
19, 2013, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on August 19, 2013.
(a)-(5) Press Release issued by the Company, dated December
2, 2013, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on December 2, 2013.
(a)-(6) Press Release issued by the Company, dated March 24,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on March 25, 2014.
(a)-(7) Press Release issued by the Company, dated April 14,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on April 14, 2014.
(a)-(8) Press Release issued by the Company, dated April 16,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on April 16, 2014.
*(a)-(9) Transmittal Letter to the Shareholders of the Company,
dated May 8, 2014.
(a)-(10) Press Release issued by the Company, dated June 3,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on June 4, 2014.
*(a)-(11) Transmittal Letter to the Shareholders of the Company,
dated June 6, 2014.
(a)-(12) Press Release issued by the Company, dated June 26,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on June 26, 2014.
*(a)-(13) Transmittal Letter to the Shareholders of the Company,
dated July 10, 2014.
*(a)-(14) Notice of Reconvened Extraordinary General Meeting
of Shareholders of the Company, dated July 10, 2014.
(a)-(15) Press Release issued by the Company, dated July 28,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on July 30, 2014.
(a)-(16) Press Release issued by the Company, dated July 29,
2014, incorporated herein by reference to Exhibit 99.2 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on July 30, 2014.
(a)-(17) Press Release issued by the Company, dated September
23, 2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on September 23, 2014.
(a)-(18) Press Release issued by the Company, dated October
21, 2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on October 21, 2014.
*(b)-(1) Equity Commitment Letter, dated as of December
2, 2013, by and between Mr. Shuipan Lin and Parent.
(b)-(2) Loan Note, by and between Mr. Shuipan Lin and Ms. Weixin
Zhuang, dated February 25, 2014 (English translation), incorporated herein by reference to Exhibit 7.07 to the Schedule 13D filed
with the Securities and Exchange Commission on February 28, 2014.
(b)-(3) Loan Note, by and between Mr. Shuipan Lin and Mr. Guomin
Chen, dated February 25, 2014 (English translation), incorporated herein by reference to Exhibit 7.08 to the Schedule 13D filed
with the Securities and Exchange Commission on February 28, 2014.
*(b)-(4) Consent of the Company dated March 13, 2014 to waiver
under Equity Commitment Letter, dated as of December 2, 2013 by and between Mr. Shuipan Lin and Parent.
(b)-(5) Subscription Agreement by and among Wisetech Holdings
Limited, Windtech Holdings Limited, and Pan Long Company Limited dated as of June 3, 2014, incorporated herein by reference to
Exhibit 7.11 to the Schedule 13D/A filed with the Securities and Exchange Commission on June 5, 2014.
(b)-(6) Loan Note, by and between Mr. Shuipan Lin and Ms. Weixin
Zhuang, dated June 3, 2014 (English translation), incorporated herein by reference to Exhibit 7.09 to the Schedule 13D/A filed
with the Securities and Exchange Commission on June 5, 2014.
(b)-(7) Loan Note, by and between Mr. Shuipan Lin and Mr. Guomin
Chen, dated June 3, 2014 (English translation), incorporated herein by reference to Exhibit 7.10 to the Schedule 13D/A filed with
the Securities and Exchange Commission on June 5, 2014.
(b)-(8) Loan Agreement, by and between Mr. Shuipan Lin and Chundi
Ding, dated September 5, 2014 (English translation), incorporated herein by reference to Exhibit 7.12 to the Schedule 13D/A filed
with the Securities and Exchange Commission on September 23, 2014.
(b)-(9) Loan Agreement, by and between Mr. Shuipan Lin and Xiuyu
Chen, dated September 5, 2014 (English translation), incorporated herein by reference to Exhibit 7.13 to the Schedule 13D/A filed
with the Securities and Exchange Commission on September 23, 2014.
*(c)-(1) Opinion of Houlihan Lokey (China) Limited, dated
December 2, 2013, incorporated herein by reference to Annex B of the proxy statement.
*(c)-(2) Discussion materials prepared by Houlihan Lokey
(China) Limited for discussion with the independent committee of the board of directors of the Company, dated December 2, 2013.
*(d)-(1) Agreement and Plan of Merger, dated as of December
2, 2013, by and among the Company, Parent and Merger Sub incorporated herein by reference to Annex A to the proxy statement.
*(d)-(2) Contribution Agreement, dated as of December
2, 2013, by and among the Rollover Shareholders and Parent, incorporated herein by reference to Annex E of the proxy statement.
*(d)-(3) Voting Agreement, dated as of December 2, 2013,
by and among the Rollover Shareholders, Parent, and the Company incorporated herein by reference to Annex F of the proxy statement.
*(d)-(4) Limited Guaranty, dated as of December 2, 2013, by
Mr. Shuipan Lin in favor of the Company, incorporated herein by reference to Annex G of the proxy statement.
(d)-(5) First Amendment to Agreement and Plan of Merger,
dated as of October 20, 2014, by and among the Company, Parent and Merger Sub.
(d)-(6) First Amendment to Limited Guaranty, dated as of
October 20, 2014, by Mr. Shuipan Lin in favor of the Company.
*(f)-(1) Dissenters’ Rights, incorporated herein by reference
to the section entitled "Dissenters’ Rights" in the proxy statement.
*(f)-(2) Section 179 of the BVI Business Companies
Act, 2004, as amended, incorporated herein by reference to Annex C of the proxy statement.
(g) Not applicable.
* Previously filed.
SIGNATURES
After reasonable inquiry and to the best
of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: October 21, 2014
| |
Exceed Company Ltd. |
| |
|
|
| |
By: |
/s/ Jin Jichun |
| |
Name: |
Jin Jichun |
| |
Title: |
Chairman of the Independent Committee |
| |
|
|
| |
/s/ Shuipan Lin |
| |
Shuipan Lin |
| |
|
|
| |
Tiancheng Int'l Investment Group Limited |
| |
|
|
| |
By: |
/s/ Chen Shuli |
| |
Name: |
Chen Shuli |
| |
Title: |
Director |
| |
|
|
| |
/s/ Ding Dongdong |
| |
Ding Dongdong |
| |
|
| |
Pan Long Company Limited |
| |
|
|
| |
By: |
/s/ Shuipan Lin |
| |
Name: |
Shuipan Lin |
| |
Title: |
Director |
| |
|
|
| |
Pan Long Investment Holdings Limited |
| |
|
|
| |
By: |
/s/ Shuipan Lin |
| |
Name: |
Shuipan Lin |
| |
Title: |
Director |
| |
|
|
| |
/s/ Chen Shuli |
| |
Chen Shuli |
| |
|
| |
Windtech Holdings Limited |
| |
|
|
| |
By: |
/s/ Wong Kok Wai |
| |
Name: |
Wong Kok Wai |
| |
Title: |
Director |
| |
|
|
| |
Wisetech Holdings Limited |
| |
|
|
| |
By: |
/s/ Wong Kok Wai |
| |
Name: |
Wong Kok Wai |
| |
Title: |
Director |
| |
|
|
| |
Victory Summit Investments Limited |
| |
|
|
| |
By: |
/s/ Yu Jianming |
| |
Name: |
Yu Jianming |
| |
Title: |
Director |
| |
|
|
| |
RichWise International Investment Group Limited |
| |
|
|
| |
By: |
/s/ Kenry Shi |
| |
Name: |
Kenry Shi |
| |
Title: |
Director |
| |
|
|
| |
HK Haima Group Limited |
| |
|
|
| |
By: |
/s/ Weixin Zhuang |
| |
Name: |
Weixin Zhuang |
| |
Title: |
Director |
| |
|
|
| |
/s/ Weixin Zhuang |
| |
Weixin Zhuang |
| |
|
|
| |
Eagle Rise Investments Limited |
| |
|
|
| |
By: |
/s/ Zenghong Liu |
| |
Name: |
Zenghong Liu |
| |
Title: |
Director |
Exhibit Index
*(a)-(1) Proxy Statement of the Company, dated March 21, 2014
(the "proxy statement").
*(a)-(2) Notice of Extraordinary General Meeting of Shareholders
of the Company, incorporated herein by reference to the proxy statement.
*(a)-(3) Form of Proxy Card, incorporated herein by reference
to the proxy statement.
(a)-(4) Press Release issued by the Company, dated August
19, 2013, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on August 19, 2013.
(a)-(5) Press Release issued by the Company, dated December
2, 2013, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on December 2, 2013.
(a)-(6) Press Release issued by the Company, dated March 24,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on March 25, 2014.
(a)-(7) Press Release issued by the Company, dated April 15,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on April 16, 2014.
(a)-(8) Press Release issued by the Company, dated April 16,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on April 16, 2014.
*(a)-(9) Transmittal Letter to the Shareholders of the Company,
dated May 8, 2014.
(a)-(10) Press Release issued by the Company, dated June 3,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on June 4, 2014.
*(a)-(11) Transmittal Letter to the Shareholders of the Company,
dated June 6, 2014.
(a)-(12) Press Release issued by the Company, dated June 26,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on June 26, 2014.
*(a)-(13) Transmittal Letter to the Shareholders of the Company,
dated July 10, 2014.
*(a)-(14) Notice of Reconvened Extraordinary General Meeting
of Shareholders of the Company, dated July 10, 2014.
(a)-(15) Press Release issued by the Company, dated July 28,
2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on July 30, 2014.
(a)-(16) Press Release issued by the Company, dated July 29,
2014, incorporated herein by reference to Exhibit 99.2 to the Report on Form 6-K furnished by the Company to the
Securities and Exchange Commission on July 30, 2014.
(a)-(17) Press Release issued by the Company, dated September
23, 2014, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on September 23, 2014.
(a)-(18) Press Release issued by the Company, dated October
21, 2014 incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to
the Securities and Exchange Commission on October 21, 2014.
*(b)-(1) Equity Commitment Letter, dated as of December
2, 2013, by and between Mr. Shuipan Lin and Parent.
(b)-(2) Loan Note, by and between Mr. Shuipan Lin and Ms. Weixin
Zhuang, dated February 25, 2014 (English translation), incorporated herein by reference to Exhibit 7.07 to the Schedule 13D filed
with the Securities and Exchange Commission on February 28, 2014.
(b)-(3) Loan Note, by and between Mr. Shuipan Lin and Mr. Guomin
Chen, dated February 25, 2014 (English translation), incorporated herein by reference to Exhibit 7.08 to the Schedule 13D filed
with the Securities and Exchange Commission on February 28, 2014.
*(b)-(4) Consent of the Company dated March 13, 2014 to waiver
under Equity Commitment Letter, dated as of December 2, 2013 by and between Mr. Shuipan Lin and Parent.
(b)-(5) Subscription Agreement by and among Wisetech Holdings
Limited, Windtech Holdings Limited, and Pan Long Company Limited dated as of June 3, 2014, incorporated herein by reference to
Exhibit 7.11 to the Schedule 13D/A filed with the Securities and Exchange Commission on June 5, 2014.
(b)-(6) Loan Note, by and between Mr. Shuipan Lin and Ms. Weixin
Zhuang, dated June 3, 2014 (English translation), incorporated herein by reference to Exhibit 7.09 to the Schedule 13D/A filed
with the Securities and Exchange Commission on June 5, 2014.
(b)-(7) Loan Note, by and between Mr. Shuipan Lin and Mr. Guomin
Chen, dated June 3, 2014 (English translation), incorporated herein by reference to Exhibit 7.10 to the Schedule 13D/A filed with
the Securities and Exchange Commission on June 5, 2014.
(b)-(8) Loan Agreement, by and between Mr. Shuipan Lin and Chundi
Ding, dated September 5, 2014 (English translation), incorporated herein by reference to Exhibit 7.12 to the Schedule 13D/A filed
with the Securities and Exchange Commission on September 23, 2014.
(b)-(9) Loan Agreement, by and between Mr. Shuipan Lin and Xiuyu
Chen, dated September 5, 2014 (English translation), incorporated herein by reference to Exhibit 7.13to the Schedule 13D/A filed
with the Securities and Exchange Commission on September 23, 2014.
*(c)-(1) Opinion of Houlihan Lokey (China) Limited, dated
December 2, 2013, incorporated herein by reference to Annex B of the proxy statement.
*(c)-(2) Discussion materials prepared by Houlihan Lokey
(China) Limited for discussion with the independent committee of the board of directors of the Company, dated December 2, 2013.
*(d)-(1) Agreement and Plan of Merger, dated as of December
2, 2013, by and among the Company, Parent and Merger Sub incorporated herein by reference to Annex A to the proxy statement.
*(d)-(2) Contribution Agreement, dated as of December
2, 2013, by and among the Rollover Shareholders and Parent, incorporated herein by reference to Annex E of the proxy statement.
*(d)-(3) Voting Agreement, dated as of December 2, 2013,
by and among the Rollover Shareholders, Parent, and the Company incorporated herein by reference to Annex F of the proxy statement.
*(d)-(4) Limited Guaranty, dated as of December 2, 2013, by
Mr. Shuipan Lin in favor of the Company, incorporated herein by reference to Annex G of the proxy statement.
(d)-(5) First Amendment to Agreement and Plan of Merger,
dated as of October 20, 2014, by and among the Company, Parent and Merger Sub.
(d)-(6) First Amendment to Limited Guaranty, dated as of
October 20, 2014, by Mr. Shuipan Lin in favor of the Company.
*(f)-(1) Dissenters’ Rights, incorporated herein by reference
to the section entitled "Dissenters’ Rights" in the proxy statement.
*(f)-(2) Section 179 of the BVI Business Companies
Act, 2004, as amended, incorporated herein by reference to Annex C of the proxy statement.
(g) Not applicable.
* Previously filed.
Exhibit 99d5
Execution Version
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN
OF MERGER (this “Amendment”), dated as of October 20, 2014, is by and among Pan Long Company Limited, an exempted
company with limited liability incorporated under the laws of the Cayman Islands (“Parent”), Pan Long Investment
Holdings Limited, a business company with limited liability incorporated under the laws of the British Virgin Islands, all of the
issued and outstanding shares of which are owned by Parent (“Merger Sub”), and Exceed Company Ltd., a business
company with limited liability incorporated under the laws of the British Virgin Islands (the “Company”).
WITNESSETH:
WHEREAS, Parent, Merger Sub, and the Company
are parties to an Agreement and Plan of Merger dated as of December 2, 2013 (the “Agreement”);
WHEREAS, the parties
desire to amend certain provisions of the Agreement as set forth herein;
WHEREAS, in accordance
with Section 9.2 of the Agreement, (i) the boards of directors of each of Parent, Merger Sub and the Company and (ii) the Independent
Committee have approved the this Amendment; and
WHEREAS, all capitalized
terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Agreement.
NOW, THEREFORE, in
consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, intending to
be legally bound, the parties hereto agree as follows:
1. Termination
Date. In Section 8.1(b)(i) of the Agreement, “September 2, 2014” is hereby replaced with “December 31, 2014”.
2. Termination
Fee.
(a) The
following clause is hereby deleted from Section 6.2(d)(ii) of the Agreement: “except as expressly permitted by, and after
compliance with, Section 8.3(a),”.
(b) Section
8.3(a) of the Agreement is hereby amended and restated in its entirety to read as follows: “Intentionally left blank”.
(c) The
last sentence of Section 8.3(c) of the Agreement is hereby amended and restated in its entirety to read as follows:
“In the event that the
Parent or its designee shall receive full Payment of the Parent Expenses, such amount shall be deemed to be liquidated damages
for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other Person
in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof)
or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any
other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Representatives
arising out of or in connection with this Agreement or the other Transaction Documents, any of the transactions contemplated hereby
or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination; provided, however,
that nothing in this Section 8.3(c) shall limit the rights of Parent and Merger Sub under Section 9.11.”
3. Parent
Termination Fee. In first sentence of Section 8.3(b) of the Agreement, “US$2,000,000” is hereby replaced with “US$2,500,000.”
4. Remedies.
The last sentence of Section 9.11 of the Agreement is hereby amended and restated in its entirety to read as follows:
“For the avoidance of doubt,
while Parent or the Company may pursue both a grant of specific performance and the payment of the Parent Expenses under Section
8.3(c) or the Parent Termination Fee under Section 8.3(b), as the case may be, under no circumstances shall Parent or the Company
be permitted or entitled to receive both a grant of specific performance that results in a Closing and monetary damages, including
all or any portion of the Parent Expenses or the Parent Termination Fee, as the case may be.”
5. Other
Provisions Unaffected. Except as amended or modified hereby, the Agreement shall remain unchanged and in full force and effect
in accordance with its terms.
6. Governing
law and Venue. This governing law and venue provisions set forth in Section 9.4 of the Agreement shall apply to this Amendment.
7. Counterparts;
Signatures. This Amendment may be executed in any number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same agreement. This Amendment may be executed and delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file, and in the event this Amendment is so
executed and delivered, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
[signature page follows]
IN WITNESS WHEREOF, this Amendment has been
duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.
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PAN LONG COMPANY LIMITED |
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By: |
/s/ Shuipan Lin |
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Name: Shuipan Lin |
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|
Title: Director |
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PAN LONG INVESTMENT HOLDINGS LIMITED |
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|
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By: |
/s/ Shuipan Lin |
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Name: |
Shuipan Lin |
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Title: |
Director |
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EXCEED COMPANY LTD. |
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|
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By: |
/s/ Jin Jichun |
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Name: Jin Jichun |
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Title: Chairman of the Special Committee |
Exhibit 99d6
Execution Version
FIRST AMENDMENT TO
LIMITED GUARANTY
This FIRST AMENDMENT TO LIMITED GUARANTY
(this “Amendment”), has been executed by Mr. Shuipan Lin, PRC ID No. 350582196812300519 (the “Guarantor”),
and Exceed Company Ltd., a business company with limited liability incorporated under the laws of the British Virgin Islands (the
“Guaranteed Party”), effective as of October 20, 2014.
WITNESSETH:
WHEREAS, the Guarantor
issued a Limited Guaranty to the Guaranteed Party, dated as of December 2, 2013 (the “Limited Guaranty”);
WHEREAS, the Guarantor
and the Guaranteed Party desire to amend the Limited Guaranty as set forth herein; and
WHEREAS, all capitalized
terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Limited Guaranty.
NOW, THEREFORE, in
consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, intending to
be legally bound, the parties hereto agree as follows:
1. Limited
Guaranty. In Section 1 of the Limited Guaranty, “US$2,000,000” is hereby replaced with “US$2,500,000.”
2. Other
Provisions Unaffected. Except as amended or modified hereby, the Limited Guaranty shall remain unchanged and in full force
and effect in accordance with its terms.
3. Governing
law and Venue. This governing law and venue provisions set forth in Section 11 of the Limited Guaranty shall apply to this
Amendment.
4. Counterparts;
Signatures. This Amendment may be executed in any number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same agreement. This Amendment may be executed and delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file, and in the event this Amendment is so
executed and delivered, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
[signature pages follow]
IN WITNESS WHEREOF,
the Guaranteed Party has caused this Amendment to be executed and delivered as of the date first written above by its officer thereunto
duly authorized.
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EXCEED COMPANY LTD. |
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|
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By: |
/s/ Jichun Jin |
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Name: Jichun Jin |
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Title: Chairman of the Special Committee |
IN WITNESS WHEREOF, the Guarantor has executed
and delivered this Amendment as of the date first written above.
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/s/ Shuipan Lin |
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SHUIPAN LIN |